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Romero v. Berryhill

United States District Court, D. New Mexico

January 26, 2018

DOLORES A. ROMERO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         This matter comes before the Court on Plaintiff Dolores A. Romero's Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing with Supporting Memorandum (Doc. 20), filed September 5, 2017. Pursuant to 28 U.S.C. § 636(b), this matter has been referred to me for a recommended disposition. Doc. 22. Having reviewed the parties' submissions, the relevant law, and the relevant portions of the Administrative Record, the Court recommends that Ms. Romero's Motion be denied.

         I. INTRODUCTION

         Ms. Romero appeals the Social Security Administration's denial of her application for disability insurance benefits on numerous grounds. Most basically, she asserts that the administrative law judge (“ALJ”) who denied her claim failed to weigh the evidence properly and failed to consider all of her limitations when formulating her residual functional capacity (“RFC”). Doc. 20 at 1. She also argues that the ALJ failed to comply with the regulations in finding that she can return to her past relevant work. Id. However, for the reasons that follow, the undersigned finds that the ALJ's analysis is supported by law and substantial evidence. As such, the Court should affirm the ALJ's findings.

         II. PROCEDURAL HISTORY

         Ms. Romero filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act on January 28, 2013, with a protective filing date of September 6, 2012. AR at 167, 190.[1] She alleged a disability onset date of November 10, 2011, the day she stopped working, due to severe central spinal canal stenosis at ¶ 3-L4. AR at 190, 204. Her application was denied initially and upon reconsideration. AR at 81-104. She requested review and, after holding a de novo hearing, ALJ Donna Montano issued an unfavorable decision on September 8, 2015. AR at 16-33. Ms. Romero requested that the Appeals Council review the ALJ's decision on September 24, 2015. AR at 7-15. The Appeals Council denied her request on February 9, 2017. AR at 1-6. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         A claimant seeking disability benefits must establish that she is unable to engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).[2]

         At Step One of the process, the ALJ found that Ms. Romero has not engaged in substantial gainful activity during the relevant time period. AR at 21. At Step Two, she determined that Ms. Romero has the severe impairment of “status post lumbar spinal canal stenosis status post surgery in 2003 and decompression in November 2012, fibromyalgia, early osteoarthrosis of the left sacroiliac joint, osteopenia of the lumbar spine and femoral neck, and chronic pain syndrome. . . .” AR at 21. At Step Three, the ALJ concluded that Ms. Romero's impairments, individually and in combination, did not meet or medically equal the regulatory “listings.” AR at 24.

         When a claimant does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1; see 20 C.F.R. § 404.1545(a)(1). In this case, the ALJ determined that Ms. Romero retains the RFC to “perform the full range of light work as defined in 20 CFR 404.1567(b).” AR at 24. Employing this RFC at Step Four, the ALJ determined that Ms. Romero is able to perform her past relevant work as a gambling cashier, billing clerk, receptionist, customer service representative, and private-brank(sic)-exchange service adviser. AR at 28. Accordingly, the ALJ determined that Ms. Romero was not disabled from her alleged onset date through the date of her decision, and denied benefits. AR at 29.

         III. LEGAL STANDARD

         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). The Court must “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation omitted). The Court reviews only the sufficiency of the evidence, not its weight. Oldham v. Astrue. 509 F.3d 1254, 1257 (10th Cir. 2007). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[, ] [and] requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotation omitted). “A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record[.]” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).

         IV. ANALYSIS

         Ms. Romero raises two main arguments with various associated sub arguments. First, she contends that the ALJ's RFC finding is unsupported by substantial evidence and is contrary to law. Doc. 20 at 12. Specifically, Ms. Romero asserts that the ALJ committed error by adopting the non-examining doctors' findings that she is able to perform light work, by failing to include pain limitations in the RFC, by rejecting the opinion of her treating physician's assistant, by relying on improper factors when assessing her credibility, and by failing to utilize the proper structure when formulating her RFC. See Id. at 12-21. Second, Ms. Romero asserts that the ALJ committed legal error at step four, when she determined that Ms. Romero can perform her past work. Doc. 20 at 21. Specifically, Ms. Romero argues that the ALJ erred at step four by failing include all of her limitations in the RFC, by failing to compare her RFC and the functions of her past work, and by failing to state whether she could return to the work as actually performed or as generally performed in the national economy. Id. at 21-25. Having carefully reviewed these arguments and record in this case, the Court concludes that the ALJ's findings are supported by law and substantial evidence.

         A) The ALJ's RFC finding followed the applicable legal standards and is supported by substantial evidence.

         As noted above, the ALJ found that Ms. Romero retains the RFC to perform a full range of light work as defined by the regulations. In reaching this finding, the ALJ relied on the findings of nonexamining doctors employed by the Commissioner and effectively rejected the opinion of Ms. Romero's treating physician's assistant. The ALJ also discounted Ms. Romero's allegations of disabling pain. Ms. Romero argues that some of these findings are contrary to law, and that they are all contrary to substantial evidence. The Court, however, disagrees.

         1. The ALJ permissibly adopted the non-examining doctors' findings that Ms. Romero is capable of light work.

         “Administrative law judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to §§ 404.1520b, 404.1520c, and 404.1527, as appropriate, because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation.” 20 C.F.R. § 404.1513a. Under 20 C.F.R. § 404.1527(c), an ALJ must consider the following factors in deciding the weight to give a medical opinion: (1) the examining relationship; (2) the treatment relationship; (3) the supportability of the opinion; (4) the consistency of the opinion with the record as a whole; (5) the source's specialization in the area opined to; and (6) “any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the medical opinion.” 20 C.F.R. § 404.1527(c)(1)-(6).

         Here, the ALJ adopted the non-examining doctors' opinions because they “are consistent with the mild diagnostic and clinical findings and the conservative treatment records.” AR at 28. The ALJ made this finding after discussing the legal standards, noted above, AR at 27, and after considering all of the medical evidence in the record. AR at 24-28. The Court will not disturb the ALJ's findings in this regard.

         Ms. Romero, however, posits that the non-examining doctors' opinions were stale, and were post-dated by 200 pages of medical records. Doc. 20 at 13-14 (citing Chapo v. Astrue, 682 F.3d 1285, 1292-93 (10th Cir. 2012)). While it is true that Chapo cautions that an ALJ should not rely on a “patently stale opinion” when formulating a claimant's RFC, id., as the Commissioner argues, the Tenth Circuit has rejected this argument where nothing later in the record undermines the opinions. Doc. 24 at 8 (citing Tarpley v. Colvin, 601 F. App'x 641, 644 (10th Cir. 2015)). In Tarpley, the Tenth Circuit affirmed an ALJ's reliance on a prior opinion even in the face of two more recent restrictive findings because nothing in the later medical records cited by the claimant supported the disabling limitations found by the other doctors or “a material change in [the claimant's] condition that would render [the prior opinion] stale.” Id.

         Of course, Ms. Romero attempts to distinguish Tarpley on the basis that her treating physician's assistant, Mr. Mamdani, recommended more severe restrictions than did the non-examining physicians. However, the ALJ effectively rejected the restrictions Mr. Mamdani opined to and, for the reasons stated below, the Court finds the ALJ's rejection of these restrictions to be supported by substantial evidence.

         Finally, Ms. Romero argues that the ALJ's reasons for crediting the non-examining doctors' opinions were unsupported by substantial evidence because she does not have “mild diagnostic and clinical findings” or “conservative treatment records, ” she has had two spine surgeries and epidural injections. Doc. 20 at 14 (citing AR at 383). To this point, the Commissioner responds that Ms. Romero's post-surgery treatment was conservative, and she improved post-surgery to the point that she could perform the demands of light work. Doc. 24 at 9. For the reasons that follow, the Court agrees with the Commissioner.

         While it is true that spinal surgeries cannot be considered “conservative” treatment, Ms. Romero's post-surgery treatment was unquestionably that. Ms. Romero underwent her second spinal surgery on November 12, 2012, after failing “conservative management” of her symptoms. AR at 383. The surgery was performed by Richard Castillo, M.D., who explained that the major goal of surgery was to try and help Ms. Romero's leg symptoms and “may or may not have much effect in her back discomfort.” AR at 384. Ms. Romero presented for a post-operative visit on November 27, 2012, at which time she “state[d] that she is doing better since surgical intervention” and “experiencing minimal pain, ” rated at ¶ 3/10. AR at 649. She was advised to follow up with Dr. Castillo in two months. AR at 650.

         Ms. Romero presented for a post-operative appointment on January 10, 2013. AR at 643. She reported pain at ¶ 7/10. AR at 643. Dr. Castillo advised Ms. Romero to continue to work on her home exercise program and she was advised to follow up in two months. AR at 643. Ms. Romero was then seen on February 7, 2013, complaining that she was still having pain despite surgical intervention, rated at ¶ 9/10. AR at 656. Ms. Romero was encouraged to continue her postoperative exercise program, but it was noted that “her prognosis might be limited.” AR at 656.

         In the meantime, Ms. Romero was treated by Abdul Mamdani, PA-C. See AR at 673. On March 12, 2013, Ms. Romero presented for a scheduled appointment complaining of joint pain and bilateral knee pain lasting four weeks. AR at 673. Ms. Romero updated Mr. Mamdani about her back surgery and reported that “she is getting better.” AR at 673. Mr. Mamdani noted that Ms. Romero was given narcotic pain medication to start, but was not currently on any narcotics, “only on baclofen.”[3] AR at 673. In his findings, Mr. Mamdani noted that Ms. Romero had a normal gait, normal heel to toe walk, her knees were negative for varus and valgus testing, [4] and that Ms. Romero was “able to do flexion and extension of the lumbar spine with limited range of motion due to recent back surgery.” AR at 674. Mr. Mamdani assessed chronic back and bilateral knee pain. AR at 674. He told Ms. Romero to return to the clinic in two to three months, started her on a trial of Celebrex, [5] and continued her gabapentin.[6]

         Ms. Romero was then seen by Dr. Castillo on March 28, 2013. AR at 645. She reported a pain level of 3/10 as well as “a great deal of achiness.” Id. She told Dr. Castillo that she was attending ordered therapy twice per week, and that her primary care provider had started her on Celebrex and gabapentin. AR at 645. Dr. Castillo advised Ms. Romero to continue to work on her exercise program, noting that he felt that “most of her symptoms are mechanical. Hopefully the exercise and Celebrex will be useful for that.” AR at 646. As the ALJ noted, “[t]here are no subsequent orthopedic records after this date.” AR at 25.

         On May 6, 2013, Ms. Romero presented for a follow-up with Mr. Mamdani. AR at 669. She complained of joint pain, bilateral knee pains and popping in her left hip. AR at 669. Ms. Romero stated that the Celebrex she was given at her last visit did not help, and she rated her pain at ¶ 9/10. AR at 669. Mr. Mamdani noted that Ms. Romero was “going through a process of disability and that they recommended that the patient needs to get other documentation about her joint pain as much as she can so she can (sic) a good case for a disability.” AR at 669. Despite her complaints, Ms. Romero was not in apparent distress, her gait was normal, she had a normal heel to toe walk, her knees were negative for varus and valgus testing, and she had a full range of motion in her left hip. AR at 669-670. Mr. Mamdani assessed bilateral knee pain and left hip pain. AR at 670. He discontinued Celebrex and started a trial of Mobic, [7] and advised Ms. Romero to return to the clinic in 2-3 months. AR at 670, 705.

         Ms. Romero next presented to Mr. Mamdani on August 26, 2013, “complaining of joint pain which has gotten worse for the past 2 weeks” and fatigue. AR at 702. Prior to the onset of this pain, Ms. Romero reported exercising daily and participating in water therapy twice a week. AR at 702. On examination, Mr. Mamdani noted a normal gait, normal heel to toe walk, negative varus and valgus testing on her bilateral knees, and “full range of motion of L spine and C spine.” AR at 703. Mr. Mamdani assessed joint pain (arthralgia) and fatigue. AR at 703. He advised Ms. Romero to return to the clinic in two weeks, discontinued her Mobic, increased her gabapentin, and started a trial of naproxen.[8] AR at 703. When Ms. Romero returned on September 9, 2013, she reported that the naproxen helped with her pain, and Mr. Mamdani assessed Osteopenia[9] per her Dual-energy X-ray absorptiometry (DEXA) report. AR at 700-701. Mr. Mamdani refilled Ms. Romero's naproxen, continued her gabapentin, started a course of calcium and vitamin D supplements, and advised Ms. Romero to return to the clinic in three months. AR at 701.[10]

         Ms. Romero returned to Mr. Mamdani on April 8, 2014, complaining of constant back pain, beginning the day prior. AR at 825. She demonstrated tenderness in the paraspinous muscles at ¶ 4-L5, S1 area bilaterally. AR at 825. However, on examination she had full range of motion in her upper and lower extremities, L-spine and C-spine; her gait was normal, as was her heel to toe walk. AR at 825. Ms. Romero reported that she had discontinued her baclofen, which was reordered, and she was started on a trial of Voltaren topical. She also “was advised to continue to do stretching exercises as she mentioned that she has been doing them. Also, she is doing water therapy. We will go ahead and advise patient to continue to do that.” AR at 826. Ms. Romero was told to return to the clinic as needed. AR at 826.

         In sum, there is nothing in Ms. Romero's post-surgery treatment records that undermines the opinions of the state-agency doctors who determined that Plaintiff is able to perform the requirements of light work. Rather, her post-surgery records show a general improvement in her symptoms to the point where she consistently demonstrated a normal gait, normal heel to toe walk, and a full range of motion in her spine. As such, the Court will not reverse the ALJ for relying on the opinions of the non-examining doctors.

         2. The ALJ reasonably discounted Ms. Romero's complaints of pain, and was not required to include unsupported pain limitations in the RFC.

         Citing various cases and administrative rulings, Ms. Romero posits that because she has been diagnosed with stenosis, degenerative disc disease and fibromyalgia, all of which are consistent with persistent complaints of pain, the ALJ erred in failing to include pain limitations in the RFC. Doc. 20 at 14. The Commissioner responds that the ALJ reasonably found Ms. Romero's claims of disabling limitations to be unsupported by the record, Doc. 24 at 10, and that diagnosis of a condition does not alone establish that it is disabling. Doc. 24 at 11 n.3 (citing Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1998)). The Court agrees with the Commissioner.

         This Court begins with the proposition that “an individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability.” SSR 16-3P, 2017 WL 5180304, *2. Additionally, “subjective symptom evaluation, ” formerly known as “[c]redibility[, ][11] determinations are peculiarly the province of the finder of fact and will not be overturned when supported by substantial evidence.” Watts, 2017 WL 4862424, at *3 (quoting Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010)). Still, under Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), and its progeny,

the ALJ must consider and determine: (1) whether the claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether the impairment is reasonably expected to produce some pain of the sort alleged (what we term a “loose nexus”); and (3) if so, whether, considering all the evidence, both objective and subjective, the claimant's pain was in fact disabling.

Brownrigg v. Berryhill, 688 F. App'x 542, 545 (10th Cir. April 19, 2017) (quoting Keyes-Zachary, 695 F.3d at 1166-67). An ALJ is not required to cite to Luna if he states its paradigm. Razo v. Colvin, 663 F. App'x 710, 717 (10th Cir. 2016). Factors under the regulations relevant to the determination of whether a claimant's pain is in fact disabling include:

(i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3); SSR 16-3P, 2017 WL 5180304, *7-8; see Watts, 2017 WL 4862424, at *3. Findings as to a claimant's subjective pain “should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings. . . . But we do not require a formalistic factor-by-factor recitation of the evidence.” Watts, 2017 WL 4862424, at *3 (citing Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000)). To the contrary, an ALJ need only discuss those factors that are “relevant to the case.” SSR 16-3P, 2017 WL 5180304, *8.

         “Symptoms cannot always be measured objectively through clinical or laboratory diagnostic techniques. However, objective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities[.]” SSR 16-3P, 2017 WL 5180304, *5. That said, “we will not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual.” Id. Rather, “if we cannot make a disability determination or decision that is fully favorable based solely on objective medical evidence, then we carefully consider other evidence in the record in reaching a conclusion about the intensity, persistence, and limiting effects of an individual's symptoms.” Id. at *6.

If an individual's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and the other evidence of record, we will determine that the individual's symptoms are more likely to reduce his or her capacities to perform work-related activities. . . . In contrast, if an individual's statements about the intensity, persistence, and limiting effects of symptoms are inconsistent with the objective medical evidence and the other evidence, we will determine that the individual's symptoms are less likely to reduce his or her capacities to perform work-related activities. . . .

Id. at *8. With these standards in mind, the Court turns to the specific arguments Ms. Romero raises in ...


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